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Ninth Circuit: No Right to Search Text Messages Stored by Third Party

The headlines blared: "Employers can't look at your email or text messages." Unfortunately for you merchants of NSFW* content on employers' systems, not so fast. The case, Quon v. Arch Wireless, is not as broad as the papers suggest.

In Quon. the Ontario, CA sheriff noted excessive text message traffic over the department's system. Under the department's policy, an employee would get 25,000 characters as part of the plan and would have to pay for overage.

But the Sheriff wanted to see if the employees were using the system for non-work related matters. So, he contacted Arch Wireless, which provides the text message service and stores archived messages for the county. (That is, the county used Arch Wireless as its cell provider for text messages). Having received the owner's request, Arch turned over the text messages to the Sheriff.

The problem is that Arch was precluded from doing so by the Stored Communications Act. Arch, as an archiver of messages, could not turn over the messages without a court order or the consent of both parties to the communication.

The Sheriff also argued that its policy destroyed any expectation of privacy. But there was testimony from management that the announced policy was not to "audit" messages if the employee paid the overage. The promise not to inspect created an expectation of privacy.

Bottom line though - if the employer stores its own emails, this case does not apply. When this case does not apply, if you want to ensure you have access to employees' electronic communications, you need a tight policy that destroys any "reasonable expectation of privacy."

On the other hand, if a third party is the repository of your business' emails, texts, third party voice mails.... this case may be a shift in the law regarding when employers are permitted to see these communications. Therefore, employers may wish to consider bringing these IT functions "in house" or giving up the right to monitor such communications at will.